Syria conflict: British jihadists are nothing like the freedom fighters of the Spanish Civil War

It should come as no surprise that British jihadists will be prosecuted under
the UK's counter-terrorism laws, writes Dr Usama Hasan

During a two-week trial Kingston Crown Court heard how Mashudur Choudhury travelled to Syria with four other people from his local areaPhoto: Thames Valley Police

By Dr Usama Hasan

1:37PM BST 21 May 2014

Mashudur Choudhury has become the first Briton to be convicted of terrorism offences in connection with the Syrian conflict. It was clear from his trial that he had travelled to Syria to attend a terrorist training camp – and that he intended to pursue, as prosecutors put it, a "political, religious or ideological cause" with violent means. I will set out below some more background on Kingston Crown Court’s ruling, a move that will hopefully dispel all myths about the legality of fighting in Syria.

In discussions about jihadists, many say "it is not illegal to fight in Syria", justifying this assertion by comparing it to the Britons who fought in the Spanish Civil War in the late Thirties. George Monbiot did just this in a Guardian article this year. But this is an unhelpful observation – the legality of British citizens fighting in the Syrian conflict is far more complex.

In Autumn 2013, I served as an independent expert witness during the trial of one of the three British men accused of kidnapping and assaulting the British photojournalist John Cantlie and his Dutch colleague in Syria in 2012. The two victims gave harrowing accounts of their traumatic and brutal ordeal. My written submission to the court discussed the many subtleties of jihadism, looking in particular at the situation in Syria.

When invited to make a submission by James Wood QC of Doughty St Chambers, I asked him this question of legality. He answered that it was no longer necessarily true that it is legal for a civilian to fight abroad, referring to the Terrorism Act 2006, which stipulates that acts that would be terrorist if committed in the UK are now criminal if committed abroad under UK law.

These acts include membership of a proscribed organisation, attending "terrorist training camps", learning to handle chemical or biological weapons, and even "weapons training". Under its predecessor, the Terrorism Act 2000, the latter is regarded as a terrorist act – unless the defendant can prove that it was not for terrorist purposes.

We can see from other recent cases, such as the response to Mohammed Gul’s appeal against his prosecution for posting videos on YouTube showing attacks on coalition forces in Iraq and Afghanistan, that “any or all military attacks by a non-state armed group against any state […] in the context of a non-international armed conflict” will be classed as an act of terrorism by the UK courts. This adds to the already broad definition of terrorism and was critiqued by David Anderson QC, the current independent reviewer of counter-terrorism legislation, but nonetheless stands in a court of law.

As such, any Briton learning to use a gun in Syria, never mind receiving more advanced militant training, especially if this is done at camps run by al-Qaeda-linked groups such as Jabhat al-Nusra or ISIS, is at risk of prosecution for terrorism.

Recently, Quilliam discussed this further with Dominic Grieve MP, the Attorney General. His view was that that the provisions of the Terrorism Act 2006 are very general, covering a wide range of activities. However, the authorities would only prosecute if it was in the public interest to do so. For example, let’s imagine a Briton is visiting family in Syria and the neighbourhood comes under attack by regime forces, or indeed rebel ones. If said Briton were to subsequently use weapons to help defend family members or other innocent people, he would not necessarily be prosecuted in the UK. However, those who join terrorism-linked groups and proactively engage in militant activity are far likelier to be prosecuted.

Despite all this, in the UK the Government's tone does appear to have softened of late. After hardline rhetoric over the past year about locking up foreign fighters for life and introducing new legislation to make such life sentences easier to prescribe, a new police-led approach seeks to increase work with communities and families in order discourage British Muslims from fighting in Syria. I certainly welcome the move to prevent British would-be jihadists from travelling, as opposed to invariably prosecuting them when they return, but the legal precedent has already been set.

There is no question that British jihadists continue to further destabilise the Syrian Civil War. Moreover, in the last year, we have seen Britons becoming suicide bombers in Syria, allegedly perpetrating war crimes and, according to intelligence reports, posing an active threat to UK national security. It comes as no surprise that these acts would all be prosecuted under our current counter-terrorism legislation, but it is not so well-known that the legal threshold for terrorism charges is much lower. We would do well not to propagate the myth that these men are freedom fighters or that they should be compared to Britons who fought in the Spanish Civil War; both legally and politically, times have changed considerably since 1939.

Dr Usama Hasan is Senior Researcher in Islamic Studies at the Quilliam Foundation. He is a part-time Imam